Wednesday, August 8, 2018

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Judge Brett Kavanaugh has disqualified himself from consideration from a seat on the Supreme Court by two things: his past statements about presidential immunity from civil and criminal prosecutions while in office, and questioning the efficacy of U.S. v Nixon, the unanimous Supreme Court decision that ensured the release of the Watergate tapes which ultimately led to President Nixon’s resignation.

Our founders did not create a legal frame work where our president is above the law. While there was discussion of making George Washington a king, having fought a revolutionary war against the tyranny of King George III, Washington found it abhorrent that he should become the next King George. We should not now confirm a Justice to the Supreme Court who would have the power to resurrect that idea.

President Trump is under investigation for: obstruction of justice and collusion with Russians; he is facing civil lawsuits over business matters involving gifts or payments from foreign and domestic governments, defamation, misuse of his family charity for personal business, and hush money paid to sexual partners prior to the 2016 election. All of these things will predictably play out, perhaps creating a criminal indictment, during Trump’s presidency.

If the Mueller investigation were to produce a criminal indictment of President Trump, we would be faced with a constitutional crisis which would have to be resolved by the Supreme Court. Supreme Court justices do not have to recuse themselves. If there were a Justice Kavanaugh, he would be ruling on issues involving presidential immunity he has previously opined on.

In Jones v. Clinton the Supreme Court ruled that a sitting president is not immune from civil lawsuits, leaving open immunity from criminal indictments. Judge Kavanaugh is on the record having said sitting presidents should not be subject to civil and criminal prosecutions while in office, or have to face questioning by criminal prosecutors, positions he did not hold while working for the Ken Starr investigation of President Clinton. Even more disturbing are his public comments regarding the ruling in U.S. v Nixon: “But maybe Nixon was wrongly decided — heresy though it is to say so.” This kind of “heresy” does not deserve a seat on our nation’s highest court; especially in the time of Trump and McConnell.

Not that long ago (remember the confirmations of justices Ginsburg, Kennedy, and Scalia), Supreme Court justices were confirmed by bipartisan majorities on their judicial merits. Unfortunately, that changed when Senate Leader Mitch McConnell refused to allow hearings on Merrick Garland, an imminently qualified and respected jurist (and Brett Kavanaugh’s boss), to fill Antonin Scalia’s seat prior to the 2016 election, banking on the possibility that Trump would be elected president. This was a blatant political act creating a political context (the McConnell Doctrine) for future nominations. Senator McConnell cannot now say, with a straight face, that the Kavanaugh vote should take place prior to the 2018 elections — his calculation this time is the possibility the Democrats could take control of the Senate. This is the proverbial “distinction without a difference.”

Of course, President Trump’s nomination of a judge who predictably would place him above the law while in office further convolutes this nomination. So, here we are with Republicans pushing for the confirmation of a hopelessly flawed candidate, a president seeking to protect himself with the idea of a 5-4 Supreme Court vote immunizing him (and future presidents) from having to answer to the law while in office, and the public being asked to believe Judge Kavanaugh’s rationale that presidents are too busy to have to defend themselves from allegations of having committed unlawful acts as a potential new reality.

Judge Kavanaugh’s reasoning that presidents are too busy to respond to personal legal challenges ignores the reality that criminal indictments in particular, based on evidence, raise serious questions of personal ethics which cannot wait until the end of a presidential term to be resolved. If a president is guilty of criminal conduct, he or she is not fit for office. That kind of cloud hanging over the presidency cannot be put off. It weakens the Office of the President, hurting both domestic and foreign relations.